Jesse De La Cruz, who now testifies as an expert witness for defendants facing gang-enhancement sentencing, in a lot in Stockton, Calif., where he used to shoot heroin.CreditCreditPeter Bohler for The New York Times

How Do You Define a Gang Member?

Laws across the country are being used to target young men who fit the description for gang affiliation. But what if they aren’t what they seem?

Jesse De La Cruz, who now testifies as an expert witness for defendants facing gang-enhancement sentencing, in a lot in Stockton, Calif., where he used to shoot heroin.CreditCreditPeter Bohler for The New York Times

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By Daniel Alarcón

May 27, 2015

On a rainy day last December, in a courtroom in downtown Modesto, Calif., a 24-year-old white man named Jesse Sebourn, along with five co-defendants, sat accused of second-degree murder. The victim, Erick Gomez, was only 20 when he was shot to death. He was a reputed Norteño gang member who had lived just a few minutes’ drive from the working-class Modesto neighborhood where Sebourn was raised. The police estimate that there are as many as 10,000 gang members in Stanislaus County, where Modesto is, most either Norteños and Sureños, two of California’s most notorious Latino street gangs. The feud between them often turns deadly, and according to Thomas Brennan, the district attorney, this was one such instance: Sebourn and his co-defendants were Sureño gang members hunting for rivals on Valentine’s Day in 2013, when they found Gomez, out on a walk with his girlfriend.

Brennan was not saying that Sebourn had fired the gun; in fact, the accused shooter, Giovanni Barocio, had evaded arrest and is believed to be in Mexico, while witnesses and time-stamped 911 calls made it difficult to believe Sebourn had even been present at the scene when Gomez was killed. But according to the prosecution, Sebourn had set the entire chain of events in motion a few hours before the shooting, when he and two of his co-defendants tagged a mural eulogizing dead Norteños in an alley behind the building where Gomez lived. Sebourn and the others were caught in the act and beaten by Norteños, though they got away with little more than scrapes and bruises. But the prosecution argued that spray-painting over a rival’s mural was an aggressive act intended to incite violence — the equivalent of firing a shot. By this interpretation of events, the afternoon scuffle led directly to that evening’s murder: tagging, fisticuffs and finally, hours later, homicidal retaliation, each escalation following logically and inevitably from the previous. “Ask yourself,” Brennan said to the jury in his opening statement, “what are the natural and probable consequences of a gang fight?”

California law gives the prosecution the chance to increase the penalty in cases like these, in the form of a sentencing tool called a gang enhancement. If Brennan could convince the jury that Gomez had been murdered, as he put it, “for the benefit of, at the direction of, or in association with the Sureño criminal street gang,” then Sebourn and his co-defendants could be facing 50 years to life in prison. According to the penal code, without the gang enhancement, the sentence could be as little as 15 years. But Greg Bentley, Sebourn’s lawyer, told me that his client couldn’t have been charged with murder without it. He said, “The only way a jury is ever going to be able to connect something as minor as spray painting over a wall to a murder conviction is by adding a gang enhancement.”

In California, gang enhancements became law in the late 1980s, at a time when chaos and violence in some of the state’s cities had reached alarming levels. The center of the crisis was Los Angeles, where there were more than 800 homicides in 1987. There were multiple reasons behind this explosion of violence — the crack epidemic, the broad decline of the inner-city economy, waves of new immigration — but much of the killing was gang-related: foot soldiers in asinine turf battles shooting one another for revenge and sport. By some estimates, there were as many as 45,000 Latino and 25,000 black gang members in Los Angeles County in 1988. That year, a gang shooting near Westwood Village, an affluent, mostly white neighborhood, left a 27-year-old graphic designer dead from a stray bullet. The violence had spilled out of the ethnic enclaves where gangs thrived, and the public demanded action.

The State Legislature responded with the Street Terrorism Enforcement and Protection Act (STEP Act), Statute 186.22 of the penal code, which, for the first time, legally defined “gang” in the state of California: a formal or informal group of three or more, sharing a common identifying name, symbol or sign, and whose primary activity is crime. The law augments a prison sentence, adding anywhere from two years to life, depending on the severity of the underlying conviction. The Los Angeles County district attorney at the time, Ira Reiner, whose office helped draft the law, said it would help “to rid the streets of hoodlums that are terrorizing and killing our citizens.” Similar laws are now in place in 31 states across the country.

In Modesto, the vast majority of documented gang members are Latino, and most of them affiliate, however loosely, with either Sureños, from Southern California, or Norteños, from the northern part of the state. The line dividing the two groups is imaginary and constantly in flux. Each group has its own symbols (the number 13 for Sureños, 14 for Norteños, both often represented as Roman numerals) and colors (blue for Sureños, red for Norteños) and even their own strain of gangster rap (indistinguishable to the untrained ear, save the different metaphorical targets in the graphically violent lyrics). At the Sebourn trial, Brennan showed the jury and his witness, Robert Gumm, a Modesto Police Department detective, image after image of Sebourn’s extended network of friends, photos of young men and women throwing up signs for the number 13, contorting their fingers into crooked forms of the letters CLS, for Celeste Locos Sureños, Sebourn’s clique from the neighborhood near Celeste Street, on the east side of Modesto. Most of the pictures had been taken from the defendants’ cellphones, as well as from their Facebook pages. The jury saw photos of tattoos, of young men drinking 40-ounce bottles of malt liquor, scowling at the camera. It was a gangbanger’s photo album, or at least that was what this curated selection of images appeared to be. And though Sebourn himself was in only a couple, Brennan argued that he was known to these young people, as they were known to him. It was guilt by association. And it was very convincing. That rainy morning in Modesto, I had two contradictory thoughts at once: This doesn’t seem fair; and These knuckleheads sure look like gang members.

In Stanislaus County, as in many counties in California and across the United States, law-enforcement officers keep a database of individuals that they have identified as gang members. From their point of view, these lists are vital and necessary, but activists argue that they can be discriminatory. Researchers have found that white gang membership tends to be underestimated and undercounted, while the opposite is true for black and Latino youth. In 1997, California created a statewide database, called CalGang, and by 2012, according to documents obtained by the Youth Justice Coalition, there were more than 200,000 individuals named in it (roughly the same number as the population of Modesto), including some as young as 10. Statewide, 66 percent were Latino, and one in 10 of all African-Americans in Los Angeles County between the ages of 20 and 24 were on the list.

When the STEP Act became law, there were dissenting voices, some of them unsurprising, like the American Civil Liberties Union. But there were others you might not expect: Among law-enforcement authorities, for example, there were concerns that the STEP Act could be applied too broadly. Wes McBride, a retired sergeant of the Los Angeles County Sheriff’s Department and the executive director of the California Gang Investigators Association, told me that although he has come to see the law as valuable, he was initially skeptical. “We thought the original writing of that bill was bad,” he said. “It made being a gang member a crime, and that flies in the face of the Constitution, in my mind. What’s to stop the Boy Scouts from being considered a gang?” Shortly after the STEP Act went into effect, The Los Angeles Times quoted an anonymous law-enforcement official expressing concern: “I realize that we have to do something, but when you have carte blanche, it’s difficult not to abuse it.”

A quarter of a century later, this point is still being raised. Manohar Raju, a lawyer who manages the felony unit at the San Francisco Public Defender’s Office, told me he has seen prosecutors’ use of gang enhancements go up in recent years. Young men and women are bundled into the broad category of “gang member” all the time, based on photos like the ones shown at Sebourn’s trial; based on their wearing this color or that one; based, essentially, on a misunderstanding of how difficult these neighborhoods really are for youth. “Posing in a picture, acting cool or acting tough can be a navigation strategy,” Raju said. “That may not mean they want problems; in fact, it may mean the opposite.”

According to Raju, weak cases can seem stronger when prosecutors introduce gang enhancements. Instead of concrete evidence related to the criminal charge, gang allegations permit prosecutors to introduce potentially inflammatory information that might otherwise be legally irrelevant. “Now we’re looking at: what did some other person do six months earlier or six years earlier,” Raju said. “Your client may not have anything to do with them, but they both have some connection to some name or symbol.” In other cases, the very threat of the gang enhancement can often be enough to persuade a defendant to accept a plea bargain. Given the lengthy sentences that can result, a trial might not be worth the risk.

Roughly 7 percent of California’s prison population, around 115,000 people, is serving extra time because of gang enhancements; given that the state has been ordered by the Supreme Court to reduce its prison overcrowding, this is hardly an insignificant figure. According to the California Department of Corrections and Rehabilitation, nearly half of those convicted with gang enhancements are serving an additional 10 years or more. Black and Latino inmates account for more than 90 percent of inmates with gang enhancements; fewer than 3 percent are white.

But long before an accused gang member arrives in prison, the drama plays out in the streets, in daily interactions between young men and police officers, and then later, in courtrooms like the one in which Jesse Sebourn and his co-defendants were standing trial. At the heart of it all is a question: Are people to be held responsible for their actions or for whom they are perceived to be?

The man tasked with convincing the jury in Modesto that Sebourn was not what he appeared to be was himself a former gang member. On the morning he was to testify, Dr. Jesse De La Cruz, 64, wore a charcoal suit, a purple shirt and tie and black-framed glasses. Though he was a relative newcomer to the role of expert witness, he knew the criminal-justice system well: From adolescence until his mid-40s, De La Cruz had been in and out of county jails and state prisons across California, spending a total of nearly 30 years behind bars for crimes like burglary, petty theft and selling heroin. In the early 1970s, he joined the newly formed Nuestra Familia, a prison gang that would grow to become one of the most fearsome in the California system. Though he left the gang a few years later, he remained a criminal and an addict until he walked out of prison for the last time in 1996. De La Cruz told me later that he was profoundly grateful for his unlikely transformation. “I don’t regret none of the things that happened,” he said. “I’ve had the opportunity to live two lives in one lifetime.”

This second life of his, as expert witness and law-abiding citizen with a doctorate in education from California State University, Stanislaus, was relatively new. He had been introduced to the work by a lawyer defending an accused gang member in Siskiyou County, near the Oregon border. The defendant was facing the death penalty for murder, and De La Cruz’s testimony helped get the gang charges dismissed and the sentence reduced to 13 years. Now his services were in demand; he was receiving calls from all over California. Last year, he worked on 16 cases across the state. This year he already has nine. He had faced Brennan in Stanislaus County once before and on that occasion helped the defendant beat gang allegations. His job, he told me, was “to inform and educate the jury on the real dynamics of gang life.”

Before he could be asked to testify about the case itself, De La Cruz had to be certified as an expert. He brought his leather-bound doctoral dissertation on gang culture to show the jury, but more remarkable was the account of his life. He had spent his childhood in poverty in California’s Central Valley, mistreated by teachers, stricken with polio at 3 and teased because of his limp. He got in fights and was full of rage. A local criminal and heroin addict named Big Indio, who had just returned from state prison, stepped in as a kind of mentor. De La Cruz was soon expelled from school, was introduced to heroin and began preparing for prison. “If you wanted to be a gangster, it was just part of the job description,” De La Cruz told me later.

Once he was certified at the Sebourn trial, De La Cruz went point by point, attacking the prosecution’s assertions: If tagging a mural is akin to firing a shot, why didn’t the Norteños who caught Sebourn in the act kill him right then? If Sebourn was so close with Celeste Locos Sureños, why didn’t he finish the tattoo on his stomach with the name of that clique? “My goodness gracious,” De La Cruz told the jury, “if you are representing a gang, you’re going to finish the tattoo, you know. How are you going to represent if it is half-finished?”

At one point, the defense showed the jury a photo of Sebourn with his 6-year-old son, Jesse Jr. The boy was dressed in a red shirt and reddish gray shorts — the color most often associated with Norteños. A defense lawyer, Greg Bentley, asked De La Cruz, “Would someone who was a Sureño criminal street-gang member generally be taking photographs of his son wearing all red and flamed up?”

“Of course not,” De La Cruz answered.

While the prosecution was intent on connecting Sebourn and his co-defendants to the Sureños, for De La Cruz, no such connection existed. According to the legal definition, crimes like murder, drive-by shootings, drug dealing and burglaries must be a gang’s primary activities. Certainly this is true of Sureños generally, but was it true of Celeste Loco Sureños, an apparently aimless group of young men and women who seemed mostly interested in getting drunk and high?

From where I sat in the courtroom, I had a clear view of the judge, the multiethnic jury and the back of Sebourn’s head. He kept his dark hair cut short enough that I could make out the outline of the letters ES peeking through in Old English font. The prosecution’s gang expert, Detective Robert Gumm, had argued that these letters stood for East Side and were among the indicators of Sebourn’s gang affiliation. As someone who does not have a tattoo on the back of my head, who would never consider getting a tattoo on the back of my head, I found it easy to believe that this was some sort of gang statement. De La Cruz, though, didn’t agree. Sebourn and his co-defendants were pretenders. Poseurs. Like young people anywhere, they could be trying on identities. They might be irresponsible, perhaps unlikable, maybe some were even dangerous, but legally, none of that was relevant.

Sebourn’s father, Michael, was a former Aryan Brotherhood member who spent much of his son’s childhood in prison. He had just been released a few weeks before the murder, and he was also a defendant in the case. Sebourn was raised by his mother, Sandra, who worked at a hospital, and her boyfriend, a man named Kyle Garcia, who died of cancer just before the trial began. Beginning when Sebourn was in second grade, his teachers wanted to put him in special-education classes, Sandra told me, but she rejected the idea. “I didn’t want him to deal with that stigma,” she said. An expert hired by the defense estimated that Sebourn’s I.Q. was only 70 and described him as having severe intellectual limitations, unable to remember his own address or phone number. Brian Ford, a clerk for Sebourn’s lawyer, told me that Sebourn was something of a neighborhood mascot, a teenager who had never really grown up: a funny, goofy boy, always smiling. He liked to drink, smoke weed and hang out with his friends, most of whom were Latino.

He dropped out of school at 16 and became a father a couple of years later. According to his mother, her son paid his child support on time and had never been arrested. At the time of Gomez’s murder, Sebourn was working at a McDonald’s, a job he had held for two years. “I never had a police officer come to my door and tell me nothing about my son,” Sandra said. “Not once.” As for being a gang member, she had a hard time believing it: “As far as I know, he had six girlfriends, and then he had his son, and then he had to work, so when did he have time to do this gang stuff?”

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Jesse Sebourn with his sister, Jenna. His first trial for second-degree murder with a gang-enhancement charge ended with a hung jury.CreditSandra Sebourn

For De La Cruz, this was a crucial point. When asked in court about Sebourn’s work history, he was almost contemptuous. “Gang members don’t work,” he said. “I never worked when I was involved. Never.” And if he had been forced to work, he added, he most certainly wouldn’t have done so at McDonald’s, “where everybody is going to go by and see them wearing that little uniform they wear.” The jury laughed, at Sebourn’s expense, but also, I imagined, to his benefit.

Gangs are not an abstract concern in Modesto and the mostly agricultural counties of California’s Central Valley. In 2011, nearly 60 percent of the city’s homicides were gang-related. From 2002 to 2012, the homicide rate quadrupled, and the following year, the F.B.I. named Modesto one of the five most dangerous cities in the state. That same year, Forbes called the city the fifth-most-miserable in America. More than 20 percent of the population lives below the poverty line.

Todd Irinaga, an acting supervisory senior resident with the F.B.I., has lived in the Central Valley for 20 years, arriving in the area right out of the academy. In the early ’90s, gang violence was not the agency’s primary concern. “It was white-collar crimes, bank robberies, violent crime,” Irinaga said. But then the landscape changed. Over the last decade or so, he has watched the slow, northward creep of self-identified Sureños, past Delano, the town that sits on the imaginary line dividing the state between north and south. The origins of this rivalry are murky and difficult to parse, but the men of De La Cruz’s generation recalled for me a kind of golden age, when Chicanos inside California’s racially segregated penitentiaries were united against whites and blacks. That changed in the 1970s, and the North-South split inside the prisons set the stage for violence on the streets.

By Irinaga’s estimate, Norteños still outnumber Sureños in Stanislaus and surrounding counties by a factor of three or four to one, but the increase in violent crime can be traced to this rivalry. The F.B.I. responded to the worsening situation by creating the Central Valley Gang Impact Task Force in 2005 to maximize the efforts of various municipal, county and federal law-enforcement agencies. The fact that so many different entities were able to collaborate is something Irinaga is very proud of.

Irinaga, along with others I spoke to in law enforcement, insisted that the police have very nuanced criteria for deciding who is and who is not a gang member. According to Irinaga, and contrary to De La Cruz’s assertion, people aren’t documented as gang members based on a single instance of wearing red or flashing gang signs. “It’s much more sophisticated than that,” he said. “It’s situational.” When I asked the Modesto Police Department for more information, an official initially agreed to an interview and then, a few days before we were scheduled to meet, abruptly canceled. “We don’t like to do anything that makes gang members’ lives easier,” Capt. Joel Broumas told me by way of explanation, “and letting them know how we do our job might do that.”

In March, I visited a neighborhood in Modesto known as Deep South Side with a gang investigator from the Stanislaus County district attorney’s office named Froilan Mariscal. The overwhelmingly Latino neighborhood sits at the edge of town, much of it in unincorporated Stanislaus County. Here, the stark nature of the city’s struggles comes into focus: There are modest bungalows on small lots, many in a state of disrepair, and streets with no gutters or sidewalks. Just beyond the edge of the neighborhood, the agricultural fields and orchards begin. In 2009, the district attorney’s office filed a civil injunction — a court order — that named 20 local residents as accused members of a gang called Deep South Side Norteños, and created a two-square-mile “safety zone” in the area. The list eventually swelled to more than 100. Those served with an injunction could not be seen in public together inside the “safety zone” and could not wear the color red, under penalty of arrest. Mariscal himself selected the targets after a yearlong investigation during which he interviewed admitted gang members, reviewed dozens of field-interview cards from the police and spoke with local residents about their fear of gangs. Minors named on the injunction faced an 8 p.m. curfew; for those over 18, the curfew was 10 p.m., except for work, school or church.

Civil injunctions like these have been used in California since at least 1987 and have been met with controversy in every instance. The first, against an African-American gang in Los Angeles called the Playboy Gangster Crips, had to be modified after fierce opposition from the A.C.L.U. In 2013, the Ninth Circuit Court of Appeals ruled that Orange County’s gang injunction — similar to the one Mariscal wrote for Stanislaus County — was not enforceable. This spring, Oakland’s gang injunction was dropped, after years of court challenges. Meanwhile, similar challenges are being prepared by several lawyers in Stanislaus County. Like gang enhancements, injunctions are based on law-enforcement designations of someone’s gang status, which are themselves based on essentially subjective criteria.

If the legality of these injunctions is in doubt, the question of whether they work is not clear, either. Mariscal certainly believes they do. Now in his late 30s, with short black hair and a skeptical smile, he was raised in Deep South Side, attended local schools and told me he had been aware of gangs and drugs his entire life. He recalled stepping over junkies on the way to baseball practice. As we drove through the neighborhood’s rutted alleyways, he pointed out messy graffiti sprayed on the fences. “Scrap Killa” here, “Norte” there. “DSSN,” or Deep South Side Norteños. We stopped at one wooden fence where “408,” the area code for San Jose, was spray painted next to a “209,” the area code for Modesto. I could hear excitement in his voice. For Mariscal, this proved that there was coordination between cliques claiming Norteño all across the region, extending beyond the local areas. This is precisely what he and other experts argue in court all the time: Sets claiming to be Norteños or Sureños, like Jesse Sebourn’s local clique, are part of something larger than themselves.

De La Cruz, naturally, sees things differently: Sure, “209” or “408” might be a gang sign, or it could simply be a nod to regional pride. In Oakland — area code 510, numbers considered by some to be gang signs — there’s a food truck called Fiveten Burger. Is that gang-related? Last year, the senior class of a high school outside Sacramento printed up sweatshirts commemorating their 2014 graduation with the Roman numerals “XIV” on the front, the number most often associated with Norteños. Was that entire high-school class gang-related? And if they weren’t, why would different standards be applied elsewhere?

Mariscal had faced off with De La Cruz twice, and both times the juries failed to accept the prosecution’s gang allegations. Still, Mariscal was gracious toward his new antagonist. “I think Jesse and I would agree on a lot of things about gangs,” he told me. “We would agree there’s a gang problem, that gang members commit a variety of crimes. We’d agree that it’s not right for law-abiding people to live in fear in their own neighborhood.”

According to Mariscal, the gang injunction had undoubtedly improved the area: Before, he told me, gang members would stand in the street, blocking traffic, terrorizing residents. Now they kept a low profile. They were wary of congregating in public. He pointed out a bodega on a dusty side street. Earlier, there would have been a half dozen men standing there, hanging out. Now there was no one. Customers could come and go without being harassed.

Later that same day, I returned to Deep South Side with Mary Lynn Belsher, a Modesto defense lawyer to whom De La Cruz had introduced me. Belsher had challenged the injunction on behalf of Carlos Sanchez, one of the young men added to the injunction list when it was made permanent. He was only 17 at the time. At Belsher’s request, De La Cruz interviewed him and determined he wasn’t a gang member, but Sanchez was never given an opportunity to contest the designation. Before being named in the injunction, he said, he had never been arrested; afterward, everything changed. Suddenly, ordinary daily acts were a violation of a court order. Just two days after he was served papers notifying him of his designation, he was arrested for walking down the street wearing a red hat and shoes. Since then, he had been arrested five more times, he said, often for petty violations like standing in his front yard with his brother, Sergio, smoking a cigarette. Because Sergio was also named on the injunction, they were prohibited from being seen in public in the safety zone. The fence around their home isn’t high enough to block them from view.

Sanchez told me about his long and contentious relationship with the police, dating back to when he was just 12 or 13, being stopped and questioned because he wore red laces in his sneakers or a red San Francisco 49ers jacket. He has a DSSM tattoo on his back that he got when was 12 — representing his love of his neighborhood (the M is for Modesto), if you ask him; a sign of gang affiliation, if you ask law enforcement. These are the questions on which people’s lives can turn. Each arrest had been catastrophic for Sanchez and his family: He has lost jobs, had his car confiscated, spent thousands of dollars on bail. Sanchez, now 20, was soft-spoken when we met but full of anger. “It’s damn hard to find work,” he told me, and he has two children and a wife to support. “You can’t be comfortable. You can’t do nothing. You can’t walk down the street. They think it’s all funny, but they don’t live like I do.”

Mariscal would argue that the point of the injunction was to curb violence and fear. And if that makes life impossible for gang members, then so be it. But what if Sanchez isn’t a gang member? He says he isn’t; his lawyer says he isn’t; the gang expert Jesse De La Cruz says he isn’t; and the fact is that no court of law has ever found otherwise. If Mariscal made a mistake, then a law-abiding young man with no previous police record was turned into a criminal with the stroke of a pen. On April 24, the Stanislaus Superior Court granted Belsher’s motion to dismiss all charges against Sanchez on federal procedural due-process grounds.

One afternoon, as I was reporting this story, I happened to be in a sneaker store in San Francisco’s Mission District. As I was waiting at the counter, two young men standing nearby, an employee and his friend, were discussing sneakers they liked. They were 17 or 18, both Latino, having a conversation like boys across the country surely have every day. “You like the new Jordans?” one asked. The other shook his head. “Not really.”

The young man who asked the question looked surprised. “What?”

“I don’t like to wear red, you know.”

I watched them from the corner of my eye. “I don’t like to wear red.” From that stray comment, and without even realizing what I was doing, I began sizing them up: Was he saying he preferred blue, and by saying that, was he claiming Sureño? I started looking for tattoos but didn’t see any. Maybe they were hidden. It was instantaneous, and I wasn’t even aware of what I was doing until a moment later, when the first teenager reluctantly agreed: Yeah, the Jordans were off limits for him too, he admitted sheepishly. “My mom doesn’t let me wear red, either.”

All those prejudicial places my mind had gone, and meanwhile these young men had worried mothers at home, trying desperately to help them navigate a minefield and escape the very same stereotypes that had flooded my head so instantly. Don’t wear red, a mother pleads. Never. A police officer or an actual gang member might get the wrong impression.

In a court of law, impressions like those are not supposed to count, but in a gang case, they certainly can. Jesse Sebourn’s case went to the jury on Jan. 9, and deliberations became contentious almost immediately. For some, voting guilty or not guilty was inextricably entwined with the question of gang status. I spoke with one woman who was a jury member for the trial. (She asked me not to use her name because of the nature of the case.) “There are people out there,” she told me, “that the minute they hear the word ‘gang,’ they want to vote guilty.”

This is probably not an uncommon attitude in Modesto or in any American city with a gang problem, and it’s part of what makes gang enhancements so attractive to prosecutors. No one likes gang members. No one wants them in their community. At one point early in the deliberations, a bailiff had to be called when one juror pulled a weapon from the evidence box, a machete that was seized from one of the defendants’ cars the night of the shooting. He couldn’t believe anyone would contemplate a not-guilty vote. “Who carries this in the trunk of their car?” he bellowed, according to this juror.

The female juror, who is a white woman in her 40s, was born in Modesto and raised by parents she called “hippies.” Her innocence came to an end in high school, when she first encountered racism and learned that some white people refused to be friends with Mexicans. According to her, some of the older, white jurors took a dim view of Sebourn and his young Latino co-defendants. Perhaps they felt something like what I felt when I saw the endless string of images the district attorney had shown: a gut reaction, an uneasy, uncomfortable sense that young people who look like that had to be guilty of something. But she and some of her fellow jurors argued against this notion; they wanted to focus narrowly on the charges at hand. Were the defendants guilty of this particular crime? Had that been proved? To her mind, it hadn’t. There were too many questions.

The juror works as a preschool teacher at a local Head Start program, in a part of town where gangs are a problem. Some of her students, boys and girls as young as 3, tell her they aren’t allowed to sit on a blue square or use a red crayon. One boy, the son of Sureños, told her in tears that he wanted to give his mom a Valentine’s Day card but was afraid if he made it red, he would get a spanking.

For her, people like that — parents who brainwash their toddlers into this potentially fatal neurosis about colors — are the gang members. Sebourn, posing happily for a photo with his young son dressed head to toe in the colors of a rival gang, is not. She agreed with De La Cruz. Sebourn and his co-defendants were pretending; at worst, they were dead-end kids looking for meaning, not hopeless criminals to be sent away for five decades.

“When we finally came back with a hung jury, it was because a fight was going to break out,” she told me. Three jurors voted not guilty with her, and on Jan. 28, a mistrial was declared. Sebourn and his co-defendants went back to jail, to await a new trial that won’t be held until March 2016. The accused shooter, Giovanni Barocio, remains at large.

Brian Ford, the law clerk, told me that to everyone’s surprise, a few days later, at a routine hearing, Brennan announced that he would be filing felony perjury charges against De La Cruz for lying about Sebourn’s gang status. There was an audible gasp in the courtroom. De La Cruz wasn’t present, but when he heard about it, he called to tell me the news. “It’s a threat, bro,” he said. He had beaten Brennan on gang charges three times now. “They’re scared because someone’s finally pushing back.”

It’s essentially unheard-of for an expert witness to be tried for perjury, particularly if, as in this case, the testimony is an opinion, based on a subjective interpretation of the facts. I called Brennan’s office for comment, but no one responded. No charges have been filed against De La Cruz.

Since he began serving as an expert witness, De La Cruz has been involved in around 75 cases. Before Sebourn, he told me, he had only one other white client. According to the Modesto Police, whites account for only 6 percent of all gang members in Stanislaus County. In California, it would be far more likely to find a young Latino or black man in Sebourn’s precarious position: facing another trial, a gang enhancement and the gloomy prospect of an impossibly long sentence.

Gang databases, enhancements and injunctions didn’t exist when De La Cruz was coming up. Today, being listed as a gang member in your youth can be far more devastating. You might never have the chance that De La Cruz had to start over.

One afternoon last December, De La Cruz and I were driving down San Joaquin Avenue in Stockton, where he lives, chatting about his work, when he spotted a teenager turning onto the avenue, just a block ahead of us. He walked with slumped shoulders and looked vaguely Latino.

“So what about him?” De La Cruz asked. “Is he a gang member?”

I narrowed my gaze. The young man wore a baseball cap, baggy beige jeans and a matching oversize beige jacket. He was carrying a bag of chips in one hand and a plastic soda bottle in the other. There was, quite obviously, no way to tell.

“Let’s go ask him,” De La Cruz said, and drove up alongside the young man. He pulled his car over, rolled down the window and called out in his booming voice, “Hey, homie, come here!” It was a command.

De La Cruz left the engine running and got out. I did, too. “Check it out,” De La Cruz said, nodding at me. “My friend right here is writing for The New York Times. He wants to know if you’re in a gang.”

To my surprise, the young man seemed not put off or even offended, as I would have expected, but amused by the whole line of questioning. He had a dot tattooed by his right eye (something a police officer would certainly have noted as a potential gang symbol) and a tattoo in cursive lettering just below his neck. The strap of his white undershirt ran over it, making it difficult to read. He wore a blue plastic crucifix hanging to the middle of his stomach. If we had been the police, and this interaction had been a field interview, these details could have been noted as signifiers of gang affiliation.

The young man told us he wasn’t in a gang, though he said he had been documented by the local police. This means that somewhere in the files of the Stockton Police Department, where a list of active gang members is kept, his name appears. But this alone doesn’t necessarily answer the question. Maybe if we followed him home and met his friends and his family, we would have a definitive answer. Maybe if we checked his Facebook page or his cellphone, we would know. He said he wore baggy clothes because he liked the style. “This is how people in my neighborhood dress,” he said. I might have said the exact same thing at his age, but I grew up in entirely different circumstances, and no one ever would have thought to ask me.

We switched to Spanish and chatted casually for a few minutes about police harassment, about work (he didn’t have a job). Then we shook hands. De La Cruz nodded at me, and we got back in the car. We hadn’t driven very far before he admitted the kid might have been lying. Maybe he was in a gang, maybe he wasn’t. You couldn’t tell from such a brief interaction, any more than you could tell from a block away.

“But,” De La Cruz said, “the police do that all the time.”

Daniel Alarcón is the author of four books, including “At Night We Walk in Circles,” a finalist for the 2014 PEN-Faulkner Award.

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